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RITA TAFOYA Personal Representative of Frank Tafoya, Deceased Plaintiff
vs.
JACK BOBROFF et al., Defendants.
 
Case:
CIV. NO. 94-0310 JB
 
Location:
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO
 
Date:
September 27, 1994, Decided
 
Attorneys:
For RITA TAFOYA personal representative of Frank Tafoya deceased for the benefit of Jeannette Tafoya Pamela Jean Chavez and Christopher Martinez beneficiaries est Frank Tafoya nfr Jeannette Tafoya nfr Pamela Jean Chavez nfr Christopher Martinez plaintiff: Sterling F. Black Esq. Albuquerque NM.
For JACK BOBROFF Superintendent of Albuquerque Public Schools CRAIG O'NEIL Security Officer of Albuquerque Public Schools JOHN DOE 1 2 and 3 officers or employees of Albuquerque Public Schools ALBUQUERQUE PUBLIC SCHOOL BOARD defendants: Eleanor K. Bratton Esq. Michael L. Carrico Esq. Modrall Sperling Roehl Harris & Sisk Albuquerque NM.
 
Court:
Burciaga
 
Author:
The Hon. Justice Juan G. Burciaga
 

THIS MATTER is before Court on Defendants' March 29 1994 motion to dismiss or in the alternative for summary judgment. Court having reviewed the pleadings the submissions of the parties and the relevant law and being otherwise fully advised in the premises finds Defendants' motion to dismiss is well taken and is granted.

In this case Plaintiff seeks compensatory damages for the wrongful death of Frank Tafoya. Plaintiff Rita Tafoya is decedent's personal representative. Defendants are the Albuquerque Public School Board ("APS") and its Superintendent Jack Bobroff its Security Officer Craig O'Neil and other APS officers or employees John Does I II and III.

Plaintiff's decedent interviewed for the job of security officer with Defendant APS on February 14 1992. Plaintiff alleges that decedent told Defendant O'Neil head of the APS Security Office of decedent's high blood pressure diabetes thyroid condition and injured leg at the interview. Decedent's application showed that he was fifty-one years old and he appeared overweight. During the interview Defendant O'Neil required decedent and several other applicants to complete a physical agility test including a timed 1.5-mile run around a cinder track. Near the end of the run decedent collapsed from a cardiovascular failure and died soon thereafter. The Office of the Medical Examiner conducted an autopsy including alcohol and drug screening tests and determined the cause of death to be atherosclerotic cardiovascular disease.

Plaintiff filed suit on December 16 1993 in state court. Defendants removed to the United States District Court for the District of New Mexico on March 24 1994. Plaintiff's Amended Complaint states causes of action under the New Mexico Tort Claims Act the New Mexico Human Rights Act the Americans With Disabilities Act the Rehabilitation Act of 1973 the Civil Rights Act of 1991 and the United States and New Mexico Constitutions.

I. STANDARDS FOR MOTION TO DISMISS

For the purposes of a motion to dismiss this Court must accept the material allegations of the complaint as true. Franklin v. Meredith 386 F.2d 958 959 (10th Cir.1967). Dismissal is appropriate only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson 355 U.S.41 45-46 2 L. Ed. 2d 80 78 S. Ct.99 (1957). Court must construe the pleadings liberally and if any possibility of relief exists should not dismiss the claim. Gas-a-Car Inc. v. American Petrofina Inc. 484 F.2d 1102 1107 (10th Cir.1973).

II. NEGLIGENCE CLAIM UNDER THE NEW MEXICO TORT CLAIMS ACT

Section 41-4-4 of the New Mexico Tort Claims Act ("Tort Claims Act") states:

"[A] governmental entity and any public employee while acting within the scope of duty are granted immunity from liability for any tort except as waived by sections 41-4-5 through 41-4-12 NMSA 1978.N.M. Stat. Ann. SEC. 41-4-4 (Michie 1989 & Supp.1994). The parties do not dispute that Defendant APS is a governmental entity and that Defendants Jack Bobroff Craig O'Neil and John Does I II and III were public employees acting within the scope of duty at the time of decedent's death. Therefore the Tort Claims Act applies to Plaintiff's negligence claim and Defendants are immune from liability for any tort except as waived by the Act.

A. No Waiver of Immunity under Section 41-4-6

Plaintiff alleges that two sections in the Tort Claims Act waive Defendants' immunity with respect to her claim. First she alleges that Defendants' negligence "in the operation or maintenance of any building public park machinery equipment or furnishings" caused decedent's death. N.M. Stat. Ann. SEC. 41-4-6 (Michie1989 & Supp.1994). Section 41-4-6 of the Tort Claims Act waives immunity for such negligence. Id. However the facts that Plaintiff alleges simply do not fit the terms of this section as the New Mexico courts construe them. The New Mexico Supreme Court recently discussed the scope of section 41-4-6 in Archibeque v. Moya 33.N.M. Bar Bull. 56 (Jan. 20 1994). In Archibeque the plaintiff a prisoner at the Central New Mexico Correction Facility sued the defendant a prison intake officer alleging that the defendant had negligently released the plaintiff into the general prison population despite the fact that one of the plaintiff's known enemies was in that population. Id. at 56. This enemy and other inmates assaulted the plaintiff the same night he entered the general prison population. Id. On a certified question from the United States Court of Appeals for the Tenth Circuit the Archibeque court held that the Tort Claims Act rendered the defendant a public employee acting within the scope of duty immune from tortuous liability and did not waive that immunity. Id.

Court rejected the plaintiff's argument that section 41-4-6 waived the defendant's immunity holding that the "operation" and "maintenance" of a penitentiary facility did not include "the security custody and classification of inmates." Id. at 57. Court characterized the defendant's acts as "an administrative function associated with the operation of the corrections system " rather than "operating and maintaining the prison's physical premises." Id. According to Court "to read section 41-4-6 as waiving immunity for negligent performance of administrative functions would be contrary to the plain language and intended purpose of the statute." Id.

Court's language in Archibeque clearly excludes actions such as Defendants' in the present case from the section 41-4-6 waiver of immunity. Defendants' allegedly negligent acts concerned "the security custody and classification" of interviewees. Id. Giving a physical agility test to the interviewees was "an administrative function associated with the operation of" the APS facility rather than "operating and maintaining the [APS'] physical premises." Id. According to the Archibeque decision section 41-4-6 waiver of immunity does not apply in such a case. Accord Bober v. New Mexico State Fair 111 N.M.644 808 P.2d 614 (1991); Castillo v. County of Santa Fe 107.N.M. 204 755 P.2d 48 (1988). Thus section 41-4-6 of the Tort Claims Act cannot support the waiver of Defendants' immunity. See also Martinez v. Kaune Corp. 106 N.M.489 745 P.2d 714 (Ct. App. 1987) cert. denied 106.N.M. 439 744 P.2d 912 (1987) (negligent inspection of foods and food processing operations was not negligent operation or maintenance of any building); Pemberton v. Cordova 105 N.M.476 734 P.2d 254 (Ct. App. 1987) (negligent supervision of student who assaulted another student was not negligent operation or maintenance of any building). *fn1

B. No Waiver of Immunity under Section 41-4-12

Plaintiff also argues that section 41-4-12 of the Tort Claims Act waives Defendants' immunity for decedent's death. Section 41-4-12 waives immunity for:

wrongful death . . . resulting from assault battery false imprisonment false arrest malicious prosecution abuse of process libel slander defamation of character violation of property rights or deprivation of any rights privileges or immunities secured by the constitution and laws of the United States or New Mexico when caused by law enforcement officers while acting within the scope of their duties.

N.M. Stat. Ann. SEC. 41-4-12 (Michie1989 & Supp.1994) (emphasis added). Plaintiff alleges that Defendants negligently caused decedent's death and in doing so deprived him of rights privileges or immunities secured by the Fourteenth Amendment of the United States Constitution and by article II section 4 of the New Mexico Constitution. Plaintiff then alleges that because Defendants are law enforcement officers or their superiors acting within the scope of duty section 41-4-12 waives immunity for their acts. Plaintiff's argument fails because in her complaint she has alleged only that Defendants acted negligently. in depriving decedent of his life. Therefore she has not alleged a violation of section 41-4-12 or the United States or New Mexico Constitutions.

First Plaintiff has not properly alleged a violation of section 41-4-12. The law in this area is clear:

This Court has held that a law enforcement officer or agency may be held liable under section 41-4-12 for negligently causing infliction of one of the predicate torts. See Cross v. City of Clovis 107 N.M.251 755 P.2d 589 (1988); Schear v. Board of County Comm'rs 101 N.M.671 687 P.2d 728 (1984); Methola v. County of Eddy 95 N.M.329 622 P.2d 234 (1980). But no case has held that simple negligence in the performance of a law enforcement officer's duty amounts to commission of one of the torts listed in the section.

Bober v. New Mexico State Fair 111 N.M.644 653-54 808 P.2d 614 623-24

(1991).

Second Plaintiff has not properly alleged that Defendants deprived decedent of rights privileges or immunities secured by the United States or New Mexico Constitutions. The United States Supreme Court has unequivocally stated that "the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life liberty or property." Daniels v. Williams 474 U.S.327 328 88 L. Ed. 2d 662 106 S. Ct.662 (1986) (emphasis in original); see also Davidson v. Cannon 474 U.S.344 88 L. Ed. 2d 677 106 S. Ct.668 (1986). Court notes that while Plaintiff's complaint alleges only that Defendants acted negligently see Plaintiff's Amended Complaint PP 8 9 10 12 and 16 in her Memorandum in Support of Plaintiff's Response to Defendants' Motion to Dismiss or in the Alternative for Summary Judgment ("Plaintiff's Memorandum") Plaintiff argues that she has not based her case on simple negligence but on "reckless disregard of or deliberate indifference to" decedent's rights. Plaintiff's Memorandum at 8. However the facts in Plaintiff's complaint simply do not support such an allegation. As such the Court will not consider Plaintiff's conclusory allegation in ruling on Defendants' motion to dismiss. See Landmark Land Co. v. Buchanan 874 F.2d 717 722 (10th Cir.1989) ("although we are obligated to construe the complaint in the light most favorable to plaintiff we 'will not accept conclusory allegations on the legal effect of the events plaintiff has set out if these allegations do not reasonably follow from [its] description of what happened.'" (quoting 5 C. Wright & A. Miller Federal Practice & Procedure SEC. 1357 (1969)).

Finally Plaintiff has set forth no law supporting her argument that Defendants' actions violated decedent's rights under article II section 4 of the New Mexico Constitution which provides:

All persons are born equally free and have certain natural inherent and inalienable rights among which are the rights of enjoying and defending life and liberty of acquiring possessing and protecting property and of seeking and obtaining safety and happiness.

N.M. Const. art. II SEC. 4. Plaintiff relies on the New Mexico Supreme Court's observation that the language of article II section 4 of the New Mexico Constitution is broader than that of the Fourteenth Amendment to the United States Constitution. California First Bank v. New Mexico 111 N.M.64 76 801 P.2d 646 658 (1990). However that case provides no law to aid Plaintiff for it adds: "we do not reach the issue of whether and under what circumstances violation of [the provisions of article II section 4] gives rise to a cause of action for damages under the provisions of the Tort Claims Act." Id.

The New Mexico Court of Appeals recently considered whether a law enforcement officer's negligence violated article II section 4 resulting in a waiver of immunity under section 41-4-12 of the Tort Claims Act. See Caillouette v. Hercules Inc. 113 N.M.492 827 P.2d 1306 (Ct. App.) cert. denied 113.N.M. 352 826 P.2d 573 (1992). In Caillouette the plaintiff alleged that a law enforcement officer negligently caused her husband's death and that section 41-4-12 of the Tort Claims Act waived the officer's immunity. Id. at 496 827 P.2d at 1308-09. Specifically the plaintiff argued that the defendants' negligence deprived decedent of his right to have certain laws enforced under inter alia article II section 4 of the New Mexico Constitution. Id. at 497 827 P.2d at 1311. Court cursorily rejected the plaintiff's argument holding only that "[if] we were to base a waiver of immunity on these provisions the exceptions thus created would eliminate the principle of sovereign immunity. We do not think that can have been the legislature's intent." Id. Court's observation is equally applicable to the instant case. Thus Plaintiff's argument that Defendants' actions violated article II section 4 resulting in waiver of immunity must fail. Because Plaintiff has alleged neither an enumerated tort nor a violation of the constitutions of the United States or New Mexico section 41-4-12 of the Tort Claims Act cannot support a waiver of Defendants' immunity.

III. CLAIM UNDER THE NEW MEXICO HUMAN RIGHTS ACT

Court will dismiss Plaintiff's claim under the New Mexico Human Rights Act N.M. Stat. Ann. SEC.(s) 28-1-1 to 28-1-7 28-1-9 to 28-1-14 (Michie.1991 & Supp.1994) because Plaintiff has failed to exhaust her administrative remedies under the Act. See N.M. Stat. Ann. SEC. 28-1-10 (Michie.1991 & Supp.1994). The parties stipulate that Plaintiff has not pursued administrative remedies with the Equal Employment Opportunity Commission or the New Mexico Human Rights Commission regarding decedent's death. The New Mexico Supreme Court recently and unequivocally held that a plaintiff under the New Mexico Human Rights Act must exhaust his or her administrative remedies against each defendant before he or she may sue the defendant in court. Luboyeski v. Hill 117 N.M.380 872 P.2d 353 355 (1994) ("individual defendants cannot be sued in district court under the Human Rights Act unless and until the complainant exhausts her administrative remedies against them"). See also Phifer v. Herbert 115 N.M.135 138 848 P.2d 5 8 (Ct. App. 1993); Jaramillo v. J.C. Penney Co. 102 N.M.272 273 694 P.2d 528 529 (Ct. App. 1985). Plaintiff has produced no law to support her argument that she need not fulfill this requirement because she brings suit as the personal representative of a decedent rather than on her own behalf nor has Court located any law that stands for this proposition.

IV. CLAIM UNDER THE AMERICANS WITH DISABILITIES ACT

A. Subchapter I--Employment

Plaintiff correctly does not attempt to state a claim under Subchapter I of the Americans With Disabilities Act ("ADA") concerning employment because the effective date of this subchapter was July 26 1992 about five months after decedent's death on February 14 1992. See Americans With Disabilities Act Pub. L. No. 101-336 SEC. 108 104 Stat.336 (1990). Furthermore the United States District Court for the Southern District of New York recently held that the ADA does not apply retroactively. Verdon v. Consolidated Rail Corp. 828 F. Supp.1129 1140-41 (S.D.N.Y. 1993).

B. Subchapter II--Public Services *fn2

Court will dismiss Plaintiff's claim under Title II of the ADA because Plaintiff as a matter of law is not entitled to compensatory or punitive damages under the applicable relief provisions but only to equitable relief which she has not sought. The relief provisions of Title II of the ADA are complex; one must trace a chain of legislation and case law through several steps to reach the operative law. One begins at 42 U.S.C. SEC. 12133 of the ADA which confers upon the Title II plaintiff "the remedies procedures and rights set forth in section 794a of Title 29 [of the Rehabilitation Act of 1973]." 42 U.S.C.A. SEC. 12133 (West Supp.1994). Section 12133 does not distinguish between 29 U.S.C. SEC. 794a(a)(1) and 29 U.S.C. SEC. 794a(a)(2) even though the subsections are distinct. Court will therefore deal with each subsection separately.

1. Compensatory Damages under Section 794a(a)(1) of the Rehabilitation Act

According to its terms subsection 794a(a)(1) of the Rehabilitation Act is available to "any employee or applicant for employment aggrieved by the final disposition of . . . any complaint under section 791 of [Title 29]." The subsection confers upon the plaintiff "the remedies procedures and rights set forth in section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16) including the application of sections 706(f) through 706(k) (42 U.S.C. 2000e-5(f) through (k))." 29 U.S.C.A. SEC. 794a(a)(1) (West 1985). Subsection 2000e-5(g) in turn specifies the relief actually available in such an action. Under this subsection a successful plaintiff may obtain equitable relief "which may include . . . reinstatement or hiring of employees with or without back pay." 42 U.S.C.A. SEC. 2000e-5(g) (West 1981 & Supp.1994). The subsection does not provide for compensatory or punitive damages. See id. Thus under 29 U.S.C. SEC. 794a(a)(1) Plaintiff is not entitled to the compensatory damages she seeks.

2. Compensatory Damages under Section 794a(a)(2) of the Rehabilitation Act

Subsection 794a(a)(2) of the Rehabilitation Act available to "any person aggrieved by any act or failure to act by any recipient of Federal assistance " confers upon such persons "the remedies procedures and rights set forth in title VI of the Civil Rights Act of 1964 [42 U.S.C.A. Sec. 2000d et seq.]." 29 U.S.C.A. SEC. 794a(a)(2) (West 1985). Because Title VI does not have a remedies provision federal case law determines what remedies are available. Crucial to this question is the recent United States Supreme Court decision of Franklin v. Gwinnett County Public Schools 503 U.S.60 112 S. Ct.1028 117 L. Ed. 2d 208 (1992). In Franklin the Supreme Court held that "a damages remedy is available for an action brought to enforce Title IX." Id. At 1038. The holding is significant to the issue of whether such a remedy is available under Title VI for two reasons. First Court has construed Title VI and Title IX consistently; indeed in finding a damages remedy under Title IX Court cited to cases construing Title VI. Id. at 4170. Second Court in Franklin set forth the analysis the federal courts should use to determine what remedies a plaintiff may obtain under a statute for which a private right of action exists but which specifies no remedies. According to the Franklin analysis once a court has determined that a statute provides a private right of action Court must "presume the availability of all appropriate remedies" such that Court may "'make good the wrong done.'" Id. at 1033 (quoting Bell v. Hood 327 U.S.678 684 90 L. Ed. 939 66 S. Ct.773 (1946)). Court must then determine whether Congress intended to limit the remedies available. 112 S. Ct. at 1032 1035-37. Finally Court must determine whether the remedies sought are "appropriate." Id. at 1038.

Several courts have used the Franklin analysis to determine whether damages are available under Title VI and have uniformly determined that for intentional violations they are available. See e.g. Wood v. President & Trustees of Spring Hill College 978 F.2d 1214 (11th Cir.1992); J.L. v. Social Sec. Admin. 971 F.2d 260 (9th Cir.1992); Tyler v. City of Manhattan 849 F. Supp.1442 (D. Kan.1994); Miller v. Spicer 822 F. Supp.158 (D. Del. 1993); U.S. v. Forest Dale Inc. 818 F. Supp.954 (N.D. Tex. 1993); Kraft v. Memorial Medical Ctr. 807 F. Supp.785 (S.D. Ga. 1992); Ali v. City of Clearwater 807 F. Supp.701 (M.D. Fla. 1992); Doe v. District of Columbia 796 F. Supp.559 (D.D.C. 1992); Tanberg v. Weld County Sheriff 787 F. Supp.970 (D. Colo. 1992). In Tanberg Court first noted that as in Franklin the plaintiff's claim under the Rehabilitation Act Sec. 794a(a)(2) and Title VI arose under a federal statute providing a private right of action but failing to specify the relief obtainable. 787 F. Supp. at 972. As such Court concluded that "any appropriate remedy including compensatory damages is available to 'make good the wrong done.'" Id. (quoting Franklin 112 S. Ct. at 1033 (quoting Bell v. Hood 327 U.S.678 684 90 L. Ed. 939 66 S. Ct.773 (1946))).Next Court observed that Congress has not expressly disallowed compensatory damages under the Rehabilitation Act and Title VI and did not intend to limit the remedies available. Id. Finally Court decided that compensatory damages were an "appropriate" remedy where the plaintiff alleged intentional discrimination and where money damages tended to redress the plaintiff's injuries better than equitable remedies. Id. at 973.

This Court takes note however of the Tyler court's reasoning in declining to award the plaintiff in that case compensatory damages. See Tyler 849 F. Supp. at 1444. The Tyler court first observed that prior to Franklin a majority of courts to have considered the issue had determined that compensatory damages for emotional distress were not available under SEC. 794a(a)(2) of the Rehabilitation Act. Id. Court then acknowledged the Franklin and Tanberg decisions but distinguished the case before it on two grounds. Id. First Court noted that

Tanberg involved a claim of intentional discrimination . . . while plaintiff's claim in the instant case does not. Further Tanberg specifically determined that compensatory damages were an 'appropriate' remedy in that case . . . since reinstatement was not considered a feasible option because of plaintiff's deteriorating condition.

Id. *fn3 The Tyler decision highlights the importance of a condition every court has imposed as a prerequisite to a damages remedy under SEC. 794a(a)(2) of the Rehabilitation Act or SEC. 12133 of the ADA: the plaintiff must allege intentional discrimination. "Compensatory damages are precluded in cases of unintentional discrimination but are permissible on a showing of intentional discrimination." Wood 978 F.2d at 1219.

Applying the law to the present matter Court concludes that Plaintiff is as a matter of law not entitled to compensatory damages under 29 U.S.C. SEC. 794a(a)(2). To be entitled to compensatory damages under these sections as discussed at length above Plaintiff must allege that Defendants intentionally discriminated against decedent because of his disability. See e.g. Wood 978 F.2d at 1219. Plaintiff in the pleadings has failed to allege any facts suggesting that Defendants intended to discriminate against Plaintiff's decedent because of his cardiovascular disability. Rather Plaintiff alleges that Defendants' endurance test was "not reasonably related to the potential employee's ability to perform the essential functions of the job " and that the test tended to "screen out qualified individuals with disabilities on the basis of their disability." Plaintiff's Amended Complaint at 10 PP 13-14. Taking the factual allegations of Plaintiff's complaint as true and making all reasonable inferences in Plaintiff's favor Plaintiff has alleged no facts tending to show that Defendants required applicants to complete the run with the intent to adversely affect disabled persons.

Likewise Plaintiff has alleged no facts tending to show that Defendants treated decedent differently because of his disability. While Plaintiff does allege that Defendants knew of decedent's disability before requiring him to complete the run Plaintiff does not allege that Defendants required him to complete the run because of the disability. Rather Plaintiff's own allegations make clear that Defendants required decedent to complete the run because all applicants for the position of security officer with APS had to do so.

Plaintiff argues that she has alleged "intentional discrimination" in Plaintiff's Memorandum at 20; she also argues that the test is "designed to disqualify screen and weed out any applicants having a cardiovascular condition" in a "diabolically effective" way. Plaintiff's Memorandum at 20-21. Court need not consider these assertions for two reasons. First they are not contained in the pleadings. Second and more importantly they are bald conclusory allegations accompanied by no assertions of fact. As such Court will reject them in deciding Defendants' motion to dismiss. See e.g. Frazier v. DuBois 922 F.2d 560 562 n.1 (10th Cir.1990); Landmark Land Co. v. Buchanan 874 F.2d 717 722 (10th Cir.1989). Because Plaintiff has alleged no facts tending to show that Defendants intended to discriminate against decedent because of his disability she is as a matter of law not entitled to compensatory damages under section 12133 of the ADA and section 794a(a)(2) of the Rehabilitation Act. 42 U.S.C.A. SEC. 12133 (West Supp.1994); 29 U.S.C.A. SEC. 794a(a)(2) (West 1985).

3. Compensatory Damages under 42 U.S.C. SEC. 1981a of the Civil Rights Act

Finally Court must consider whether Plaintiff is entitled to compensatory damages under 42 U.S.C. SEC. 1981a of the Civil Rights Act. Section 1981a confers on certain civil rights plaintiffs the remedy of compensatory and punitive damages in two subsections 1981a(a)(1) and 1981a(a)(2). 42 U.S.C.A. SEC. 1981a (West 1981 & Supp.1994). Again Court will consider each subsection individually.

a. Subsection 1981a(a)(1)

Subsection 1981a(a)(1) does not apply to Plaintiff because it provides a remedy only against a defendant who "engaged in unlawful intentional discrimination . . . prohibited under section 703 704 or 717 of the Act (42 U.S.C. 2000e-2 or 2000e-3) [or 42 U.S.C. SEC. 2000e-16]." 42 U.S.C.A. SEC. 1981a(a)(1) (West 1981 & Supp.1994). Beyond the fact that Plaintiff has not alleged that Defendants engaged in intentional discrimination Plaintiff has also failed to allege that Defendants engaged in conduct that 42 U.S.C. SEC.(s) 2000e-2 2000e-3 or 2000e-16 prohibit. First Plaintiff has made no allegation with respect to 42 U.S.C. SEC.(s) 2000e-2 or 2000e-3. Plaintiff has alleged that Defendants violated 42 U.S.C. SEC. 12133 of the ADA which through 29 U.S.C. SEC.794a of the Rehabilitation Act does refer to 42 U.S.C. SEC. 2000e-16. See 42 U.S.C.A. SEC. 12133 (West Supp.1994); 29 U.S.C.A. SEC. 794a (a)(1) (West 1985). However the provision of 42 U.S.C. SEC. 2000e-16 that prohibits certain discriminatory practices is addressed solely to the federal government see 42 U.S.C.A. SEC. 2000e-16(a) (West 1981 & Supp.1994) and therefore Defendants cannot have violated it. Thus 42 U.S.C. SEC. 1981a(a)(1) does not confer upon Plaintiff the remedy of compensatory or punitive damages.

b. Subsection 1981a(a)(2)

Likewise subsection 1981a(a)(2) does not confer upon Plaintiff the remedy of compensatory or punitive damages for violations of 42 U.S.C. SEC. 12133 of the ADA. Subsection 1981a(a)(2) provides for compensatory or punitive damages where a defendant has "engaged in unlawful intentional discrimination under . . .section 102 of the Americans With Disabilities Act of 1990 (42 U.S.C. 12112) or committed a violation of section 102(b)(5) of the Act [42 U.S.C. SEC. 12112(b)(5)]." 42 U.S.C.A. SEC. 1981a(a)(2) (West 1981 & Supp.1994). Again Plaintiff has not alleged that Defendants engaged in intentional discrimination. Furthermore Plaintiff has alleged only that Defendants violated 42 U.S.C. SEC. 12133 of the ADA not 42 U.S.C. SEC. 12112 which latter section was not effective when the events at issue occurred. See 42 U.S.C.A. SEC. 1981a(a)(2) (West 1981 & Supp.1994); 42 U.S.C.A. SEC. 12133 (West Supp.1994); 42 U.S.C.A. SEC. 12112 (West Supp.1994). Subsection 1981a(a)(2) does not provide for compensatory or punitive damages for a violation of 42 U.S.C. SEC. 12133. 42 U.S.C.A. SEC. 1981a(a)(2) (West 1981 & Supp.1994).

For the foregoing reasons Plaintiff is as a matter of law not entitled to the compensatory damages she seeks and she has not sought any other relief. See Plaintiff's Amended Complaint at 12. Therefore Court will dismiss Plaintiff's claim under the ADA.

V. CLAIM UNDER THE REHABILITATION ACT OF 1973

Court will also dismiss Plaintiff's claim under 29 U.S.C. SEC. 794 of the Rehabilitation Act of 1973 because she is as a matter of law not entitled to compensatory or punitive damages under this section. The remedies provision for violations of 29 U.S.C. SEC. 794 is 29 U.S.C. SEC. 794a(a)(2) which Court has already discussed at length supra with regard to Plaintiff's ADA claim. Briefly 29 U.S.C. 794a(a)(2) confers upon 29 U.S.C. SEC. 794 plaintiffs the remedies procedures and rights of 42 U.S.C. SEC. 2000d or Title VI. Federal courts have concluded that plaintiffs under Title VI are entitled to compensatory damages only for intentional discrimination See e.g. Wood v. President & Trustees of Spring Hill College 978 F.2d 1214 (11th Cir.1992); Tyler v. City of Manhattan 849 F. Supp.1442 (D. Kan.1994). Because Plaintiff has not properly alleged that Defendants engaged in intentional discrimination she is not entitled to compensatory damages under 29 U.S.C. SEC. 794a(a)(2). See id.; 29 U.S.C.A. SEC. 794a(a)(2) (West 1985).

VI. ALCOHOL AND DRUG TESTS

Court will dismiss Plaintiff's claim that Defendants violated Plaintiff's constitutional rights under the Fourteenth Amendment to the United States Constitution and other provisions of the United States and New Mexico Constitutions when they allegedly ordered drug and alcohol tests to be performed on decedent's corpse. Plaintiff has cited no law to support her allegation that she has a Fourteenth Amendment liberty interest in the treatment of decedent's corpse. Furthermore the United States Court of Appeals for the Fifth Circuit recently considered plaintiffs' liberty interest in the treatment of a relative's corpse and found that the plaintiffs had no such interest. See Arnaud v. Odom 870 F.2d 304 311 (5th.Cir.) cert. denied sub nom. Tolliver v. Odom 493 U.S.855 107 L. Ed. 2d 117 110 S. Ct.159 (1989). *fn4 This Court will therefore "[refrain] from creating from the substantive parameters of the due process clause . . . a new liberty interest in the instant case." 870 F.2d at 310-11. Furthermore Plaintiff provides no legal support for her claims under any other provision of the United States or New Mexico Constitutions.

VII. CLAIMS UNDER THE CIVIL RIGHTS ACT OF 1991 SECTIONS 1983 AND 1981

Court will dismiss Plaintiff's claims that Defendants deprived decedent of life and property without due process of law in violation of 42 U.S.C. SEC.(s) 1981 and 1983 the Fourteenth Amendment to the United States Constitution and article II section 4 of the New Mexico Constitution. Initially Plaintiff can only bring suit under 42 U.S.C. SEC.(s) 1981 and 1983 against Defendants in their individual capacities because Defendant APS as an "arm of the state " see Martinez v. Taos Bd. of Educ. 748 F.2d 1393 1396 (10th Cir.1984) and Defendants APS employees in their official capacities are not "persons" for the purposes of the Civil Rights Act of 1991. See Will v. Michigan Dep't of State Police 491 U.S.58 64 70-71 105 L. Ed. 2d 45 109 S. Ct.2304 (1989).

Plaintiff's claims against Defendants in their individual capacities fail because Plaintiff has not properly alleged that Defendants violated decedent's constitutional rights. Section 1983 "does not create any substantive rights but provides a recovery for the deprivation of federal rights." Scothorn v. Kansas 772 F. Supp.556 560 (D. Kan.1991).Thus "to state a claim under SEC. 1983 a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States." Barnard v. Chamberlain 897 F.2d 1059 1062 (10th Cir.1990). As discussed above Plaintiff has alleged no more than that Defendants acted negligently in requiring Plaintiff's decedent to run 1.5 miles; and the United States Supreme Court has unequivocally stated that "the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life liberty or property." Daniels v. Williams 474 U.S.327 328 88 L. Ed. 2d 662 106 S. Ct.662 (1986) (emphasis in original). Because Plaintiff has not properly alleged that Defendants violated decedent's constitutional rights she cannot state a claim under 42 U.S.C. SEC. 1983. Plaintiff has also failed to produce any legal support for the argument that Court should treat article II section 4 of the New Mexico Constitution any differently than the Fourteenth Amendment. Finally 42 U.S.C. SEC. 1981 does not apply to the present case because Plaintiff has alleged discrimination on the basis of disability not on the basis of race and 42 U.S.C. SEC. 1981 applies only to the latter. See 42 U.S.C.A. SEC. 1981 (West 1981 & Supp.1994) ("all persons . . . shall have the same right . . . to make and enforce contracts to sue be parties give evidence and to the full and equal benefit of all laws and proceedings . . . as is enjoyed by white citizens") (emphasis added); see also e.g. Saint Francis College v. Al-Khazraji 481U.S. 604 609-10 95 L. Ed. 2d 582 107 S. Ct.2022 .reh'g denied 483 U.S.1011 97 L. Ed. 2d 749 107 S. Ct.3244 (1987) (holding that section 1981 protects persons subjected to discrimination solely because of their ancestry or ethnic characteristics). Therefore Court will dismiss Plaintiff's claims under 42 U.S.C. SEC.(s) 1981 and 1983.

Wherefore

IT IS ORDERED ADCourtD AND DECREED that Defendants' March 29 1994 motion to dismiss for failure to state a claim upon which relief can be granted be and hereby is granted.

Juan G. Burciaga

Chief Court

 
Notes:

*fn1 The Archibeque decision essentially foreclosed Plaintiff's reliance on Silva v. New Mexico 106 N.M.472 745 P.2d 380 (1987). "Silva provides no generally applicable principle pertaining to the interpretation of Section 41-4-6." 33.N.M. Bar Bull. at 58-59.

*fn2 The effective date of Title II of the ADA was January 26 1992. Americans With Disabilities Act Pub. L. No. 101-336 SEC. 205(a) 104 Stat.337 (1990).

*fn3 Court notes that had Plaintiff properly alleged intentional discrimination compensatory damages would have been an "appropriate" remedy in her case. As in Tanberg reinstatement of the decedent or other equitable relief is not possible. Tanberg 787 F. Supp. at 973.

*fn4 Furthermore the facts in the Arnaud case were far more egregious than the facts Plaintiff alleges in the present case. In Arnaud the defendant performed "grisly controlled experiments" upon the corpses of the plaintiffs' infant children. 870 F.2d at 306. Plaintiff alleges milder facts in two respects. First she alleges that Defendants ordered drug and alcohol screening tests not "grisly controlled experiments." Second Plaintiff's decedent was an adult at the time of his death whereas plaintiffs' decedents in Arnaud were infant children. Id.